28 September 2009
Ryde City Council v Emidio Pedras
Judgment
1 GILES JA: The stated case is set out in the reasons of Harrison J. With the benefit of his Honour's reasons, with which the following assumes familiarity, I can explain with brevity my reasons for its determination. I will refer to Ryde City Council as the prosecutor and to Mr Pedras as the defendant.
The form of the stated case
2 The Court raised with the parties the unsatisfactory form of the stated case.
3 This Court's authority pursuant to s 5B of the Criminal Appeal Act 1912 is confined to determining a question or questions of law arising on any appeal to the District Court submitted by a judge of that court, and then to making appropriate orders or giving appropriate directions (including quashing any acquittal, conviction, or sentence of the District Court on the appeal). This Court can not determine any questions of fact or draw factual inferences. The facts on which this Court is to make its determination should be set out, and specific questions of law should be stated for determination. Harrison J has referred to relevant authority.
4 The case stated included some procedural history and some facts as found by the judge. It annexed a number of documents. The documents should not have been annexed. The terms of the penalty infringement notice and the notice of appeal to the District Court were irrelevant. If there were relevant facts appearing from the transcript of the proceedings in the Local Court or the transcript of the proceedings before the judge in the District Court, they should have been included as facts stated, and not left to be gleaned from an annexed transcript (see Madden (1995) 85 A Crim R 367 at 371). The judge's judgment should have been encapsulated so far as relevant in the facts or the questions of law.
5 Question 1 submitted by the judge was not appropriately framed (see Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547 at [15]), but did present for determination a question of law in the construction of s 13(2)(b) of the Companion Animals Act 1998, namely, whether a person not present at the time of the offence was "in charge of the dog at that time" within s 13(2)(b). Question 3 also sufficiently presented a question of law, namely, whether costs could be awarded to the defendant for his personal time. Question 2, however, in my view did not present a question of law for determination by this Court. Rather, it directed this Court's attention to "the facts fully found" (whatever they may have been) and asked whether the defendant had been properly found not guilty of an offence against s 13(2). That was in substance an appeal against the dismissal of the charge brought against the defendant, and no less so because of the introductory words, "Did I err in law in interpreting s 13(2) of the Act … ".
6 The Court having raised the matter, the defendant objected to the form of the stated case. Neither party was in a position to assist the Court.
7 The defendant provided supplementary written submissions on the point; as Harrison J has recorded, the prosecutor did not. It is correct that the directions for further written submissions were confined to submissions on the application next mentioned to strike out the case stated on the ground that the penalty infringement notice was invalid. In declining, for that reason, to deal further with the form of the stated case, when it could have responded to the defendant's submissions or at least asked the Court whether it should respond, the prosecutor compounded its initial inability to provide assistance to the Court, quite apart from considerations of its own interests.
8 The Court is entitled to have had better attention given by the parties to the presentation of the stated case.
9 No application was made to remit the stated case for amendment or supplementation. Despite its unsatisfactory form, the questions of law submitted by the judge in the stated case should be determined so far as can properly be done within the constraints of this Court's authority.
The application to strike out the stated case on the ground that the penalty infringement notice was invalid
10 The defendant's written submissions provided prior to the hearing showed little recognition that the stated case procedure under s 5B confined this Court's attention to questions of law arising on the appeal to the District Court and submitted by the judge. One respect in which they went beyond the stated case was the contention that the penalty infringement notice was not validly issued, and that that vitiated the prosecution and in an unspecified way it should so be held on the stated case. That question did not arise in the appeal to the District Court, and was not within the questions of law submitted by the judge. It can not be determined on the stated case.
11 In order to provide a possible vehicle for the contention to be addressed, the Court suggested to the defendant's counsel that she might orally apply to strike out the stated case because of the asserted invalidity. She did so. The parties provided supplementary written submissions. Harrison J has summarised their arguments.
12 In my opinion, the application should be dismissed. I express no view on the validity of the issue of the penalty infringement notice or the effect (if any) of invalidity on the prosecution. It is sufficient that the authority of this Court comes from the submission by the judge of questions of law arising on the appeal to the District Court. Whether the penalty infringement notice was invalidly issued, and if so what effect (if any) that had on the prosecution, could have been raised before the Magistrate, or on the appeal to the District Court, and if raised would have been a matter for decision within the prosecution or the appeal. To this point there is an effective prosecution and appeal, and the judge has submitted the questions of law. In my opinion, it is not open to the defendant to raise by an application to strike out the stated case his contention that the penalty infringement notice was not validly issued.
The defendant's application to add a further question of law
13 As described by Harrison J, this application was made in the defendant's supplementary written submissions. It was made without leave. Harrison J has described the arguments. Apart from the absence of leave, the application is without substance.
14 First, this Court can not add a question of law to a stated case; its authority is confined to determination of a question or questions of law submitted by a judge of the District Court. Secondly, such question or questions must arise on the appeal to the District Court, and it is apparent that the validity of the issue of the penalty infringement notice was not raised and so did not arise in the appeal. Thirdly, the question as framed, for the reasons given by Harrison J, was not specific to the present case, and even if it were made specific by regard to the penalty infringement notice issued against the defendant questions of fact could arise which are not the subject of the stated case. Not least, for the prosecutor's argument relying on s 37 of the Fines Act 1996 it would be necessary to know how proceedings were taken against the defendant following an election to have the matter dealt with a court.
15 The application should be dismissed.
The construction of s 13(2)(b)
16 Harrison J has set out s 13 of the Companion Animals Act and the respective arguments.
17 There is a contravention of s 13, for the purposes of s 13(2), in the circumstances set out in s 13(1); that is, where a dog is in a public place not under a competent person's effective control in the required manner. Section 13(2) then provides that if the section is contravened there is guilt of an offence, either guilt of the owner of the dog or guilt of another person who was in charge of the dog at the time. These are alternatives, the second being conditional on an additional fact. The owner is guilty if the owner was present at the time of the offence. The other person may be guilty if the owner was not present at the time of the offence.
18 For the second of the alternatives to operate, it is necessary that the owner was not present "at the time of the offence": unhappy wording but meaning at the time the dog was in a public place not under the control of a competent person as stated in s 13(1). It is also necessary that another person was in charge of the dog at the time of the offence. The owner of the dog is guilty of an offence pursuant to s 13(2)(a) unless the dual requirements in s 13(2)(b) are fulfilled, in which event the other person is guilty of an offence pursuant to s 13(2)(b).
19 In the present case the dog was in a public place and was not under the effective control of a competent person in the required manner. The defendant was the owner of the dog, but was not present at the time of the offence. Accordingly, and subject to the defendant's submissions concerning s 12A of the Companion Animals Act next mentioned, whether the defendant was guilty of an offence turned on whether his wife and/or children were in charge of the dog at the time of the offence.
20 Putting the construction issue in accord with the arguments as described by Harrison J, being in charge of the dog at the time of the offence could mean having the general care and control of the dog, or could mean having the particular control of the dog when the dog was in the public place. In my opinion, the latter is the correct construction. The section is concerned with the control of dogs in public places through the exercise of control by the owner of the dog or by some other person who is in charge of the dog. The words "at the time of the offence" and "at that time" make it clear that being in charge is directed to the effective control of the dog which should be exercised but is not being exercised. Being in charge of a dog means more than responsibility for its general care and control; it means having the particular responsibility for its control when the dog is in the public place.
21 Accordingly, the judge was wrong in law to be satisfied that the defendant's wife and/or children were in charge of the dog because the dog had been left in their care and control.
22 Question 1 in the case stated may not in its terms be entirely appropriate to the construction issue. The question can be treated as asking whether the judge erred in law in finding that a person in whose care and control a dog had been left but who was not present when the dog was in a public place was a person in charge of the dog at the time of the contravention of s 13(1). So understood, the question should be answered yes.
23 As I have said, question 2 in the stated case did not present a question of law for determination. It should not be answered.
24 Harrison J has described the defendant's argument to the effect that s 12A of the Companion Animals Act was engaged, not s 13, and that the two were mutually exclusive. I make no comment upon that argument. The facts in the stated case say nothing about how the dog came to be in the public place. (The judge's judgment says nothing about it. The defendant told the Magistrate that the dog dug his way out under the fence, but no clear finding was made even if regard can be had to the transcript of the proceedings before the Magistrate.) Apart from the absence of necessary facts, the engagement of s 12A does not arise on the stated case because question 1 is concerned only with the construction of s 13(2)(b) and question 2 should not be answered.
Costs
25 The prosecutor's first submission was that the judge had awarded costs to the defendant without necessary prior regard to whether he was satisfied in one or more of the respects set out in s 70(1) of the Crimes (Appeal and Review) Act 2001. The stated case does not refer to satisfaction. Were it permissible to have regard to the transcript before the judge, it would be seen that satisfaction does not appear to have been raised for his Honour's consideration. However, it would also be seen that the judge made observations critical of the prosecutor, which could have brought the matter within s 70(1)(d) if it had been drawn to his attention. It is unnecessary to consider this submission further, since the prosecutor's second submission should be accepted.
26 The second submission was that costs could not be awarded for the defendant's personal time. I am prepared to act on the common ground that the personal time was the defendant's lost earnings as a taxi driver. The prosecutor relied on Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. The defendant submitted that Cachia v Hanes could be distinguished because the present case was a criminal case, but could not provide a principled basis for a distinction. He also relied on Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288 at 295 and its adoption by the minority in Cachia v Hanes at 423, but the observations in that case can not stand with the view of the majority in Cachia v Hanes.
27 The starting-point must be the judge's power to award costs, although neither party referred to it. The appeal to the District Court was under s 11 of the Crimes (Appeal and Review) Act. By s 28(3), subject to s 70 the District Court could "make such order as to the costs to be paid by either party (including the Crown) as it thinks just". "Costs" was not defined.
28 The reasoning of the majority in Cachia v Hanes applies. "Costs" means money paid or liabilities incurred for professional legal services, and costs orders are intended to reimburse a party for costs incurred, and "are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant" (at 414, per Mason CJ and Brennan, Deane, Dawson and McHugh JJ). Loss of earnings can not be treated as a disbursement (at 417, ibid).
29 Accordingly, question 3 in the stated case should be answered yes.
Other orders
30 The prosecutor submitted that this Court should order that the appeal to the District Court be dismissed (but did not seek an order for costs in the District Court). I do not think that should be done. It may be that application can be made in the appeal to put submissions concerning s 12A, or possibly to raise the contention concerning invalid issue of the penalty infringement notice. The defendant should not be shut out from those opportunities.
31 The defendant rather faintly submitted that no order should be made beyond answering the questions, so that the judge's decision would remain. He referred to Roads and Traffic Authority v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566 at [52-[55], but there the prosecutor did not seek an order remitting the matter to the District Court. In the present case the prosecutor sought to overturn the judge's decision, and if that is not done by this Court ordering that the appeal be dismissed there should be a remission.
32 In my opinion, consequent upon the answers to questions 1 and 3 the judge's orders should be set aside, and the matter should be remitted to the District Court where the appeal can be re-addressed.
33 The prosecutor has in substance succeeded on the stated case, and there should not be a partial costs order in favour of the defendant reflecting that question 2 is not answered. The prosecutor did not ask for costs of the stated case.
Orders
34 I propose the orders:
1. Dismiss the applications to strike out and to add a question to the stated case.